[This article was written by Murphey while he was in law
school, and was published in the Colorado
Springs Gazette-Telegraph sometime in 1958.He worked part of that summer as a fundraiser for the Colorado Right to
Work Committee.The initiative was defeated
in the November election.]

In Support of the 1958 Colorado “Right to Work” Initiative

Dwight D. Murphey

The “Right
to Work” is now a live public issue in Colorado.Heated discussion concerning it will be heard
throughout the State between now and November, at which time the voters will
decide whether to place a Right to Work Amendment into the Bill of Rights of
the Colorado constitution.

At issue is
the question of whether an employee can be denied a job or discharged from a
job he may presently hold because he chooses not to belong to a labor
union.Right to Work legislation is
designed to do away with the “closed shop” and the “union shop,” the two major
forms of compulsory unionism.Its basic
principle is that each employee may choose individually whether or not to join
a labor union, and may not be forced into either joining or not joining under
fear that he will lose his job or employment opportunities if he does or does
not join.

For many years American law has been
virtually unanimous in its declaration that a person may not be denied
employment because of his union affiliation.Right to Work legislation reiterates this principle, but adds a like
protection to the non-union worker, saying that a person may not be denied
employment because of his lack of union affiliation.In this manner, it recognizes fully the legal
right of a worker to join a union, but grants legal protection to him from
economic reprisal if he should choose not to join.

The
proposed Colorado Right to Work Amendment, to be voted upon at the General
Election this November, reads as follows:

No person shall be denied
the freedom to obtain or retain employment because of membership or
non-membership in any labor union or organization; nor shall the State of
Colorado or any subdivision thereof, or any individual, corporation, agent,
employee representation committee, or any kind of association enter into or
extend any contract, agreement, or understanding, written or oral, which
excludes any person from employment because of membership or non-membership in
any labor union or organization.

The issue
has come to the fore in American politics during the last twelve years, during
which time eighteen states have enacted Right to Work legislation.The voters in five additional states,
including Colorado, are passing
on the problem in elections this fall.The
rapid growth of such laws is the result of two conditions, the first being the
attempt by labor organizations, during the past several decades, to force
compulsory union membership in the form of the “closed shop” and the “union
shop,” the second being the lack of federal “preemption” of the field as to
legislation concerning compulsory unionism, so that each state is left free to
enact its own laws on the matter.The Taft-Hartley
law, which regulates labor-management relations in Interstate Commerce and
which was passed in 1946, expressly leaves the “union shop” issue open for
solution by the individual states, although at the same time it outlaws the
“closed shop.”

The
Colorado Right to Work Amendment would eliminate both the “closed shop” and the
“union shop” from commerce conducted within the boundaries of the state.It would provide for the “open shop” in all
Colorado
industry.

Under the
“closed shop,” only union members are hired, the hiring been done ordinarily
through a union hiring hall.

Under the
“union shop,” non-union workers may be hired, but must join the union within a
specified time, usually thirty or ninety days, or lose their jobs.

Under the
“open shop,” an employee may obtain and hold his job whether or not he belongs
to a labor organization.

Right to
Work laws of the sort now pending in Colorado
have two principal effects legally.They
affect the enforcement of union shop contracts and any picketing that is done
to force such a contract.They make a
compulsory union agreement between labor and management unenforceable in a
court of law, so that a union may not compel the specific performance of a
“union shop” contract by going into court and obtaining an order that the
employer must discharge all of his non-union employees.Nor may a union collect damages for breach of
contract if the employer under a “union shop” agreement refuses to fire those
employees who choose not to join a union.

Aside from
the effect upon “union shop” contract enforceability, Right to Work laws are
significant in their effect upon union picketing.Ordinarily a union may picket and in doing so
receive the legal protection of the “freedom of speech” doctrine.But picketing done for an “improper” or an
“unlawful” purpose may be enjoined.Under Right to Work legislation, picketing done for the purpose of
forcing an employer to discharge his non-union employees and replace them
solely with union members is construed to be for an “improper purpose,” and
hence subject to an injunction.Most of
the cases that have reached the Supreme Courts of the various states having
Right to Work laws have involved the restraint of such picketing.

These are
the two main legal effects.The controversy
surrounding the issue, however, stems from the economic and moral ramifications
involved.

The
foremost question inherent in Right to Work legislation pertains to an
intangible and yet extremely practical matter: the liberty of choice and action.Shall a man enjoy the entire broad range of
opportunity that the private enterprise economy opens up to him even though he
chooses not to join a labor organization?Or must that choice bring upon him a vast limitation of employment
opportunity that will deny his access to major portions of the economic system?

This is the
basic issue. Necessarily it is of great practical significance.The “liberty” issue is not vague and
abstract.It is concrete and real.

The Right
to Work, which is the right to enjoy an unobstructed access to the employment
opportunities of the free market, stems from the same liberal tradition that
underlies all other American freedoms.These
freedoms are the key to our prosperity, domestic peace, and personal
happiness.Fundamentally, all of our
freedoms are premised upon an underlying appreciation for the need for the
integrity of the human mind: the view that the mind must be free to consider
and to choose, and to accept the consequences of its rationality.

Mature
reflection must show that the entire system of liberty, including economic
liberty, expresses this central concept.It is easy to see in what way Right to Work legislation expresses it.

Under such
laws, each man is to judge for himself the worth of the labor organization that
desires him to be a member.

If he is to
belong, it is because he has been persuaded that the union is a good thing for
him.

If he
chooses not to belong, it is, under Right to Work legislation, for those who
actively support labor unionism to convince him that the union merits his
support.The burden of persuasion is
upon those who desire his adherence.

Though it
is not customary to consider the Right to Work issue in such a light, it must
be clear that the whole philosophy underlying the freedom of speech, press and
religion is now being put to a public test.

Aside from
this, it is to be expected that Right to Work legislation will considerably
influence the nature of labor unionism in the United
States.It is, however, difficult to predict the consequences in this
regard.If union membership is entirely
voluntary in the sense that no person will lose his employment because of his
exercise of choice, labor organizations may respond either by making themselves
more and more attractive and reputable or by resorting to pressure, either
violent or subtle, to force persons to join.Either course is possible.

Which
course is taken will depend very much, on the one hand, upon the intelligence
and character of the American labor movement, and, on the other hand, upon the
degree to which the American public will tolerate the use of substitute forms
of coercion.Since it is impossible to
predict the operation of these two variables, it is difficult to forecast—as a
factual matter—whether Right to Work legislation will render the unions more or
less reputable and responsible.

But one
fact is clear: Right to Work laws establish at least one prerequisite needed
for the existence of “responsible” unions.(Here we are using the word “responsible” in the sense of “responsive to
their membership and to public opinion.”)Such laws go far to place union membership on a voluntary basis.In turn, voluntary unions tend to be “responsible
unions.”

This matter
bears directly upon the question of whether the Right to Work Amendment would
strengthen, impair or leave unaffected the strength of labor organizations
within Colorado.

There are
many persons who feel that the Amendment is a “union-busting” measure.Those who hold this view assert that a lack
of 100 percent enforced unionization gives the employer a chance to covertly
discriminate against union members in favor of those who do not join the
union.They assert also that unions will
be weakened because many workers will prefer to remain non-members, not subject
to the payment of dues, while letting the union members “carry the ball” for
them.

There is, however, yet another factor to be
considered.It is a factor that
contradicts and outweighs those tendencies that the opponents of Right to Work
legislation stress.

It consists
in the fact that a voluntary and responsible association tends to recruit far
greater support from the American public than does its opposite.Since as a matter of fact the prevailing
public opinion today accepts labor unionism as a rightful institution in our
society, it is to be expected that unions will receive great public and
individual support if they adopt more and more a mantle of respectability and
service.This bears directly upon their
future strength.If this is so, it would
appear reasonably certain that over the long run labor organizations in America
will be stronger if they are voluntary than if they are compulsory.

There
exists in Colorado today
controversy upon a further question that is related to the questions of union
responsibility and union strength.There
is considerable disagreement concerning the effect that Right to Work laws have
upon the height of wages in the economy.

Statistics
are cited by both the proponents and opponents of the Amendment, the former
attempting to prove that such legislation does not lower wages, the latter
wishing to demonstrate that lower wages do result.Unfortunately, both analyses lack a sound
theoretical foundation.Since it is known
that multiple economic variables combine together to establish a given wage
level, it is senseless to correlate merely one of those variables—Right to Work
legislation—with changes in the wage rate for the purpose of asserting that the
fluctuation is the effect of that variable alone.To do so is to ignore the other known
contributing or offsetting factors.

Obviously, the effect upon wages must be
determined by some other form of reasoning.

A look at
the inherent nature of capitalism will provide us with the answer we seek.Such a look will produce what would today
seem to be a most startling conclusion.It will affirm—contrary to the almost universally accepted opinion—that
the standard of living of the American worker would not be appreciably changed
even by a total disappearance of labor unionism, and hence would not be
significantly altered by Right to Work legislation even if such a law
should—contrary to all reasonable expectation—prove in fact to be a “union
busting” measure.

Certainly
this conclusion is startling today.But
is it sound?We will see that it is.

The
foremost characteristic of the free market economic system is that it engages
in a “mass production” of goods for sale in mass markets.Capitalism is not known to center its
attention upon the manufacture of luxury items intended for the consumption of
a few very wealthy persons.But while
this is commonly recognized, it must be understood that “mass production” can
mean nothing more or less than “mass consumption.”It is the man-on-the-street who forms the
“mass market” to which private enterprise sells.As the productivity of the economic system
rises, principally through the use of new inventions, the accumulation of
capital equipment, and the better training of skilled workers, more and more
goods and services become available for consumption by the man-on-the-street.

It is this
increased consumption resulting from the general rise in productivity that
constitutes the increased standard of living of the American worker.It is this that forms the substance of any increase
in “real wages.”

In
Economics, this is known as the “productivity theory of wages.”

This view,
which seems incontestable, asserts that the economic betterment of the American
worker depends upon the productivity of the economic system and not upon
whatever pressures a labor organization can bring to bear upon management to
raise wages.

It is true
that today most every increase in wages appears on the surface to be the direct
result of union activity.But collective
bargaining is in contemporary America
the institutional medium through which wages are set, and every increase in our
standard of living is thereby bound to be at least the ostensible result of
collective bargaining, even though other independent forces of massive stature
are present and operative to produce the result.

For this
reason it is unsound to ascribe to labor organizations the economic effects
that are today so commonly imputed to them.Reason tells us that the American standard of living depends upon
American productivity and that this in turn depends upon inventiveness, capital
accumulation and education.It follows
that to the extent that labor unions augment or detract from our productivity
they increase or decrease the real wages of American workers.

The Right
to Work Amendment in no way tends to decrease productivity and the ultimate
consumption of goods and services by the American public.

It cannot
therefore be said to have injurious effects upon wage levels.

Numerous
other questions arise in connection with Right to Work laws, but a short
article cannot pretend to cope with them all.It is thought that the outstanding issues have been discussed here.In connection with these, the following
conclusions seem to be justified, if the reasoning given in this article has
been sound:

1.The Right to Work Amendment is designed to
eliminate the “union shop” and place industry on an “open shop” basis.

2.The Amendment protects the freedom of choice
as to union membership and thereby reflects the philosophy of historic liberalism.

3.The Amendment establishes a necessary part of
the legal and economic environment that will tend toward more responsible
unionism.

4.The Right to Work principle will in all
probability strengthen, and not weaken, the union movement in the United
States.

5.The Right to Work Amendment will not
adversely affect the standard of living of the American working man.